WASHINGTON — As Capitol Hill braces for the Senate confirmation hearing on Elena Kagan, President Obama’s second nominee to the Supreme Court, critics have targeted her admiration for activist jurors, lack of experience on the bench, scant paper trail on key constitutional issues, and politicized stance on abortion and same-sex “marriage.”

Less than a week before the Senate hearings begin on June 28, Judge Robert Bork, the former Yale constitutional scholar whose 1987 nomination to the Supreme Court was blocked by an alliance of liberal groups, Gerard Bradley, a Notre Dame law professor, and William Saunders of Americans United for Life, argued that Kagan’s activist judicial philosophy would have negative consequences for the nation.

During a press conference organized by Americans United for Life, a pro-life legal group based in Washington, D.C., Judge Bork took aim at Kagan’s lack of judicial experience.

Bork suggested that a candidate’s judicial experience helped to moderate problematic legal theories spawned in the hothouse intellectual environment of the nation’s top law schools. The former dean of the Harvard Law School, Kagan was appointed the solicitor general by President Obama and has never served on the bench.

“It’s typical of young lawyers going into constitutional law that they have inflated dreams of what constitutional law can do, what courts can do,” Bork said. “That usually wears off as time passes and they get experience. But Ms. Kagan has not had time to develop a mature philosophy of judging. I would say her admiration for Barak, the Israeli justice, is a prime example. As I’ve said before, Barak might be the least competent judge on the planet.”

In 2006, while serving at her Harvard post, Kagan applauded Aharon Barak — then the chief of Israel’s Supreme Court — as one who “best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice.”

Bork suggested that Kagan’s public support for Barak, during a ceremony at Harvard, was enough to disqualify her as a nominee for the nation’s highest court: “He has the most extravagantly activist record that I know of,” said Bork. “His prescription makes the Warren Court look like a restrained court.”

During the upcoming Senate confirmation hearing, it’s expected that Sen. Jeff Sessions, R-Ala., the senior Republican on the Senate Judiciary Committee, will probe Kagan’s views on a variety of topics and explore their implications for her reading of the U.S. Constitution.

Politicized Interpretation?

Despite Kagan’s popularity at Harvard, her willingness to hire “conservative” scholars at the generally liberal law school, and her limited public record, Bork predicted that she would embrace a politicized interpretation of sensitive constitutional issues that divide the nation. Originalist constitutional scholars contend that judicial activism leads jurors to “legislate from the bench” instead of allowing the democratic process to mediate potentially divisive political issues.

Bill Saunders, the senior vice president of legal affairs and senior counsel of Americans United for Life, echoed Bork’s judgment, and described the nominee as “quite extreme on the abortion issue.”

Kagan clerked for Justice Marshall, and in a 1993 Texas Law Review article, she applauded his interpretation of the constitution as “a thing of glory,” in part because it revealed “a special solicitude for the despised and disadvantaged.”

The nominee’s supporters argue that her remarks reflect an understandable respect for a legal mentor. But Saunders suggested Marshall’s one-time clerk shared his commitment to judicial activism.

Revealing Memos

Pointing to memos issued during Kagan’s service in the Clinton administration, Saunders argued that the documents revealed a politicized interpretation of abortion rights: “Any time a woman wants an abortion, she has a right to an abortion paid for by the state.”

Kagan held several positions in the Clinton administration: associate White House counsel (1995-1996) and deputy assistant to the president for domestic policy and deputy director of the Domestic Policy Council (1997-1999). Recently, some of Kagan’s memos were released to the public, and experts have mined her record for further evidence of her legal views.

Beating back charges that the Clinton-era memos reveal a left-wing ideologue, the White House has characterized Kagan’s role as a politically neutral adviser who provided “legal and policy options that reflected the president’s well-established views.”

However, pro-life advocates have latched onto Kagan’s May 13, 1997, memo dealing with the politically explosive issue of partial-birth abortion. At the time, President Clinton rejected legislation providing an outright ban on the procedure. Kagan advised the president to “endorse the Daschle amendment in order to sustain your credibility on H.R. 1122 [Partial-Birth Abortion Ban Act] and prevent Congress from overriding your veto.”

While some media reports have characterized Kagan’s advice on partial-birth abortion as a “compromise” fashioned by a moderate, Saunders and other pro-life legal experts argue just the opposite: Kagan’s memo outlined a strategy that provided the president with political cover. The Daschle amendment included a variety of exceptions to the ban and was opposed by anti-abortion groups.

Kagan’s lack of experience on the bench and the limited number of academic writings she has published on sensitive topics have made it difficult for pro-life activists to review her opinions. The best solution to this problem, they suggest, is that the candidate provide full disclosure of her constitutional philosophy during the Senate hearings.

In fact, the nominee is already on the record supporting the Bork confirmation hearings as a model for future Senate deliberations. After Bork’s nomination was defeated, subsequent nominees have sharply limited their responses to often hostile Senate interrogations.

Notre Dame’s Bradley suggested that Kagan follow her own advice and return to a more transparent review process. “We feel it’s completely fair play that she should be questioned under oath before the American people on this issue,” he said.

The Senate should carefully review the basis of Kagan’s constitutional arguments dealing with abortion and same-sex “marriage,” said Bradley, “because of her politicized path to the Supreme Court and what we do know of her judicial philosophy.” The Senate should “withhold confirmation,” he contended, if Kagan “fails to provide answers to those questions.”

Ed Whelan, president of the Ethics and Public Policy Center, a Washington, D.C., think tank, and the director of its program The Constitution, the Courts and the Culture, agreed with Bradley, and pointed to Kagan’s 1997 statement: “The Bork hearings were the best thing that happened, ever happened, to constitutional democracy.”

Kagan’s role in preventing the ROTC from recruiting at Harvard Law School — a decision characterized as a response to the military’s “discriminatory” ban on homosexuals from openly serving in the military — has generated considerable debate. Harvard’s policy was ultimately struck down in a 2006 Supreme Court decision. Subsequently, Harvard’s president, Lawrence Summers, reportedly forced the law school to reverse its policy and welcome the military recruiters.

Whelan said he was especially concerned about Kagan’s role in shaping future court decisions dealing with the legalization of same-sex “marriage.” That issue, said Whelan, was likely to reach the court in the next two to four years. “Kagan is very likely to vote to invent a federal constitutional right to same-sex ‘marriage,’ and she may well provide the decisive fifth vote,” said Whelan.

Signaling the likelihood the conservative critique will frame Republican arguments during the upcoming confirmation hearings, Sen. Orrin Hatch, R-Utah, a member of the Senate Judicial Committee, repudiated judicial activism as a violation of the founders’ intentions.

“Rather than being accountable to the people by being subject to the people’s Constitution, activist judges often make the people accountable to them by seeking to control the people’s Constitution,” said Hatch, speaking from the Senate floor, this week. “My objective in this confirmation process is to find out which kind of Justice Ms. Kagan would be.”

Comments

Brian: the source is biased and one that has a history of lying, making up what they need to and/or ignoring what is not politicvally expedient for the leftist cause. Are you suggesting that she will follow the Constitution? Maybe like Sotomayer—? What a joke, a bad joke.

She’d be a sure vote against the Constitution, life, and freedom from government.

On Kagan… an univited editorial.

There is little left in our system that mirrors the United States Constitution, the founding charter wherein limits were placed on federal power. Using any manner of rationalization over the decades, we have watched the courts bastardize its original language and often put forward judgments more in favor of political thought at the time rather than what the document clearly includes (does not include).
Whether decisions like Dred Scott or Roe, clearly there have been people who sat on the Supreme Court who were not qualified and rendered bad decisions—decisions that have harmed the foundation idea and ideals of a free America. We now have an individual in the office of the Presidency who has proven he has virtually no regard for our history or Constitution. Obama sees the country as his next step to take specific communities “organized” in the vein of Alinsky toward Marxism, suffering the fixed idea—and consequent policies—liberals have about a large segment of our population in that they cannot compete and perform sufficiently in our economy and so must remain recipients of those who can.
The kind of education he and his fellow Socialists force on children in the public system assures many will remain in the underclass, unable to contribute because of a lack of skills. Affirmative action assures some will be put into positions where they will receive pay but remain very ineffective—in short, in every organization, particularly government offices, the incompetent rise to levels beyond them. Obama’s cabinet and inner circle is a good example—affirmative action for people whose ideas, habits and hatred could not carry anywhere in a competitive marketplace—an honest marketplace. The chaos and poor performance is then blamed on some other factors—depending on what is happening at the time and what the politicians can sell to the masses. We can see it coming and could if tasked, write their scripts before an event—whether it is the spew from Reid, Boxer, Van Hollen, Frank, Pelosi, and many others or any one of the Kennedys that are left. Politicians specialize in misleading sales pitches. We know who fares best in a Socialist system—people such as the aforementioned do very well, not the underclass of the poorly educated.
Now we are subject to Elena Kagan being put forward to sit on our Supreme Court. As bad or worse as Ginsberg and Sotomayer, she is a guaranteed vote against the principles of the Constitution and we had better believe it. Being she has no experience on any bench at any level and given we know her from her memos and actions—from assisting the criminal Clintons to her disdain for the military she proudly displayed at Harvard—what else should we think? Should she even be considered for the court? No. But she has been put forward by a Socialist President whose desire to continue remaking our country into more than just a haven for the collectivists, perverse, murderous humanists, and unqualified. Instead of putting forward a jurist who knows and understands the Constitution—and knows it is a limit on federal power rather then an open invitation for mischief—he of course puts forward a baby darling of the depraved left.
Send her back to Cambridge.

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